10 FCC Red No. 13 Federal Communications Commission Record DA 95-1169 stations. As a result, Douglas maintains that KNLJ is not a Before the must-carry station pursuant to the Commission©s rules and Federal Communications Commission is not entitled to carriage on its Otterville and Keytesville Washington, D.C. 20554 systems. 3. In its opposition, KNLJ states that Douglas© arguments In re herein are based on the same faulty signal quality premise it argued in its original complaint. KNLJ points to a tech Complaint of New Life CSR-4074-M nical report prepared, by Mr. Robert Preston Yeoman Evangelistic Center, Inc. against which indicates that it can achieve a good quality signal at the Otterville and Keytesville headends given the proper Douglas Communications technical equipment.4 KNLJ argues further that Douglas© Corporation II petition for stay, which appears to be a petition for reconsi deration, is untimely5 and should not be considered in lieu Request for Carriage of a clear and unequivocal order to carry KNLJ. Finally, KNLJ avers that Douglas cannot claim that financial dam age is irreparable harm and it cites a decision of the MEMORANDUM OPINION AND ORDER Commission©s Mass Media Bureau6 which states that "The possibility that adequate compensatory or other corrective Adopted: May 24,1995; Released: June 12,1995 relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim or By the Cable Services Bureau: irreparable injury." 4. In reply, Douglas maintains that it has adequately 1. Douglas Communications Corporation II ("Douglas©), shown, using good engineering practices, that KNLJ does operator of sixteen cable systems serving in Missouri has not provide a good quality signal at its systems© headends. requested a stay1 and reconsideration of the decision in the While KNLJ©s technical showing appears to suggest that a captioned proceeding insofar as that decision ordered it to good quality signal can be received, Douglas argues that add the signal of television broadcast station KNLJ (Ch. this is only after extraordinary technical measures are em 25), Jefferson City, Missouri to its Otterville and ployed.7 Moreover, nowhere does KNLJ offer to compen Keytesville, Missouri systems.2 An opposition to the peti sate Douglas for any of the costs associated with these tion for stay was filed by KNLJ which requested that it also extraordinary measures. This, it is argued, is clearly in be incorporated by reference as an opposition to the peti contravention of the Commission©s clear statement that it is tion for reconsideration. Douglas has replied. the broadcaster, and not the cable operator, who shall be 2. In support of its request, Douglas states that it will responsible for the cost of any specialized equipment neces suffer irreparable financial injury if forced to add KNLJ to sary to provide a good quality signal.8 Finally, Douglas its Otterville and Keytesville systems and it reiterates the states that the threat of irreparable financial harm is quite arguments it raised in this regard in its opposition to real and since there is no possibility that the Commission KNLJ©s original complaint. It states that the extremely would order the system be reimbursed if it went through small size of the two systems3 would result in investments the unnecessary expense of adding and then deleting KNLJ. of at least $12.64 and $8.64 per subscriber for Otterville 5. Treating Douglas© request as a effectively a new peti and Keytesville, an investment the systems would have tion, we will grant the relief requested.9 Under the Cable great difficulty absorbing. Douglas goes on to state that Television Consumer Act of 1992,10 a UHF television sta KNLJ does not provide a good quality signal to the princi tion, such as KNLJ, must to place a signal level of at least pal headends for the Otterville and Keytesville systems and -45 dBm over a subject cable system©s headend in order to it submits the results of signal quality tests performed for be eligible for mandatory carriage. In this instance, based the two systems consisting of data from four signal level on the information now before us, we are unable to con readings taken over a 24-hour period. Douglas maintains clude the KNLJ does so. In making this finding, however, that this data demonstrates, consistent with Commission we recognize that KNLJ has the right to provide an im requirements, that KNLJ©s signal strength is substantially proved signal to Douglas© headend at which point it will be below the minimum required level of -45 dBm for UHF required to commence carriage of KNLJ. 1 In light of our action herein, we need not make a ruling on other relevant equipment (i.e. antenna, preamp, etc.). Douglas© request for an emergency stay. 5 Grant of KNLJ©s must carry complaint was released Decem 2 New Life Evangelistic Center, Inc. against Douglas Cable ber 27, 1994. Douglas© petition for stay was not filed until March Communications, 10 FCC Red 9 (1994). The Commission©s origi 1, 1995. nal action ordered Douglas to add KNLJ to its systems serving 6 Arnold L. Chase, 4 FCC RCD 5085 (1989). Clark, Franklin, Freeburg, Hallsville, Higbee, Iberia, Keytesville, 7 Douglas states that even KNLJ admits that even using extraor Lake Mykee, New Bloomfield, New Franklin, Otterville, dinary measures, its signal would only deliver a signal level of Russellville, Stover, Sturgeon, Taos, Vienna and Westphalia, between -57.45 dBm and -52.95 dBm to the Keytesville headend, Missouri. Douglas© petition herein, however, applies only to a level well below that required. Otterville and Keytesville, Missouri. 8 Implementation of the Cable Television Consumer Protection 3 The Otterville and Keytesville systems have 134 and 196 and Competition Act of 1992, Clarification Order, 8 FCC Red subscribers, respectively. 4142, 4144 (1993). 4 The technical report provided by KNLJ indicates that the cost 9 As noted by KNLJ, as a reconsideration petition Douglas© to Douglas at each system for technical modifications to achieve filing was untimely. See 47 C.F.R. §1.104(b). a good quality signal at each headend will run anywhere from 10 Pub. L. No. 102-395, 106 Stat. 1460 (1992) $450 to $2250 for a channel processor and $1200 to $1600 for all 6489 DA 95-1169 Federal Communications Commission Record 10 FCC Red NO. 13 6. The engineering data submitted by Douglas confirms its contention that KNLJ©s signal quality at the systems© designated headends is not sufficient to entitle the station to mandatory carriage on Douglas©s cable systems serving Otterville and Keytesville, Missouri. 11 The Commission has stated that "it is the television station©s obligation to bear the cost associated with delivering a good quality signal to the system©s principal headend (emphasis supplied)." 12 If as KNLJ suggests, it can provide a good quality signal to Douglas© Otterville and Keytesville systems with the use of the proper equipment, then it is the obligation of KNLJ, and not Douglas to pay for the expense to do so. 7. Accordingly, the petition filed March 1, 1995, in the captioned proceeding on behalf of Douglas Communica tions Corporation II IS GRANTED to the extent that Douglas Communication is not now required to carry the signal of KNLJ on its systems in Otterville and Keytesville, Missouri. Upon KNLJ providing the necessary equipment to receive its signal, however, Douglas shall have sixty days to add it to its signal carriage complement. 8. This action is taken pursuant to authority delegated by §0.321 of the Commission©s Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief, Cable Services Bureau 11 See 47 U.S.C. §535(g)(4). (1993), paragraph 104. 12 Report and Order in MM Docket 92-259, 8 FCC Red 2965 6490.